Confidentiality Under The Posh Act: Scope, Ambiguity, And Misuse Of The Section 16 Proviso

Anup Koushik Karavadi and Kanishk Tiwari

Introduction

Confidentiality under the Protection of Women from Sexual Harassment at Workplace Act, 2013 plays an essential role in maintaining the fairness and credibility of the inquiry process. It protects both the dignity of the complainant and the reputation of the respondent, ensuring that the proceedings remain free from external influence or prejudice. However, this safeguard has become increasingly uncertain because of the exception built into Section 16 of the Act, which allows disclosure of information “as may be required for the purpose of conducting the inquiry.” The meaning and scope of this clause are not defined in the law, leading to varied interpretations and frequent misuse. In practice, this gap has created room for selective reporting, administrative overreach, and inconsistent institutional practices. This article explores the nature and purpose of confidentiality under the POSH framework, examines the practical and legal issues arising from the Section 16 proviso, and suggests ways to define its limits more clearly. The discussion aims to contribute to a better understanding of how confidentiality can be protected without compromising fairness, transparency, or the rights of any party involved.

Legal Framework on Confidentiality under the POSH Act

The POSH Act places a clear statutory duty on all participants in an inquiry to maintain confidentiality. This duty extends to the Internal Complaints Committee, the employer, the complainant, the respondent, and the witnesses. Section 16 of the POSH Act provides that “the contents of the complaint, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the ICC or the Local Committee, and the action taken by the employer shall not be published, communicated or made known to the public, press or media in any manner.”¹ The purpose of this provision is to protect the privacy of the parties and preserve the integrity of the inquiry process by preventing any form of external pressure or public trial.

The only statutory relaxation to this rule appears in the proviso to Section 16, which permits dissemination of information “regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars.”² While the intention behind this clause is to allow acknowledgment of outcomes in genuine cases, the expression “justice secured” remains undefined. Neither the Act nor the POSH Rules clarifies what circumstances justify such disclosure or which authority may approve it. As a result, institutions have adopted varying interpretations, with some treating it as an enabling clause to disclose information to higher authorities or the public, often without procedural safeguards.

Section 17 of the Act further reinforces the confidentiality requirement by prescribing penalties for any breach. It states that whoever contravenes Section 16 “shall be liable for penalty in accordance with the provisions of the service rules applicable to the person or where no such service rules exist, in such manner as may be prescribed.”³ Rule 12 of the POSH Rules reiterates this duty by mandating that the employer and the ICC ensure that the identity of the complainant and witnesses is not disclosed during any stage of the proceedings.⁴ Similarly, Rule 14 provides that the committee’s records and recommendations must be treated as confidential, except where disclosure is required under law or by order of a competent court.⁵ Taken together, these provisions create a framework that recognises confidentiality as an essential element of procedural fairness. However, the absence of clear limits on the proviso to Section 16 has resulted in conflicting institutional practices and occasional misuse, where disclosures are justified on vague administrative grounds. This lack of definitional clarity continues to undermine the very purpose that the confidentiality clause seeks to achieve.

Scope and Ambiguity of the Section 16 Proviso

The proviso to Section 16 of the POSH Act introduces one of the most debated and undefined aspects of the confidentiality framework. While the main body of Section 16 imposes an absolute prohibition on the publication or communication of information relating to the complaint, inquiry, findings, or the identity of the parties involved, the proviso carves out a narrow exception. It allows “information [to be] disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars.”⁶

The first difficulty lies in interpreting what constitutes “information regarding justice secured.” The expression is not defined anywhere in the Act or the accompanying Rules. It therefore raises an interpretive question on whether it merely permit a general acknowledgment that redress has been granted, or does it allow disclosure of otherwise prohibited details such as the nature of the complaint, findings of the Internal Committee, or the measures taken by the employer? If the latter interpretation were to be accepted, it would effectively override the confidentiality safeguards laid down in the main part of Section 16, thereby defeating the very object of the provision.

The phrase “justice secured” appears to have been inserted to allow limited communication for the purpose of transparency, possibly to encourage confidence in the redressal mechanism. Yet, the absence of statutory boundaries around what can be disseminated and by whom has allowed institutions to interpret the proviso according to their own discretion. In some instances, employers have released public statements or internal notices announcing disciplinary action “in accordance with the POSH Act,” invoking the proviso as justification. Such disclosures, even without direct naming, often enable easy identification of the parties involved, especially within a closed professional environment. This undermines both the confidentiality of the inquiry and the reputational interests of those concerned.

Another related concern is that the proviso applies only to “justice secured to any victim,” implying that dissemination is permissible only in cases where the complaint has been upheld. It is silent about cases where the respondent is exonerated or where the complaint is found to be malicious or unsupported by evidence. This selective applicability risks creating a perception of one-sided transparency, where the existence of allegations becomes public but exoneration remains private. Such asymmetry contradicts the principles of natural justice that the confidentiality clause was designed to protect.

In effect, the proviso to Section 16 leaves open two major ambiguities: first, the substantive scope of “information regarding justice secured,” and second, the procedural authority for permitting such dissemination. In the absence of clear legislative guidance, both these aspects have been left to institutional discretion, leading to inconsistent and at times arbitrary outcomes. A purposive interpretation would suggest that the proviso must be read restrictively allowing only the dissemination of general or statistical information about redress under the Act, without reference to any specific case or identifiable detail. Until such clarification is codified or judicially settled, the undefined reach of this proviso will continue to erode the intended confidentiality that forms the backbone of the POSH framework.

Judicial and Institutional Interpretation

Judicial interpretation of confidentiality under the POSH framework has evolved gradually, often arising in response to institutional lapses or procedural excesses rather than direct statutory challenge. Courts have consistently acknowledged that confidentiality is not merely a procedural formality but a substantive guarantee that ensures fairness to both parties and sustains confidence in the inquiry process. However, judicial engagement with the proviso to Section 16 remains limited, leaving its contours largely undefined.

The first significant judicial step toward addressing the absence of uniform confidentiality practices came from the Bombay High Court in P v. A & Ors.⁷ where the Court, per Justice G.S. Patel, observed that there were “no established guidelines so far in such matters” and proceeded to frame a working protocol for future cases involving allegations of sexual harassment. The guidelines directed anonymisation of parties, in-camera hearings, and complete prohibition on public or media disclosure of any order, filing, or deposition. Importantly, the Court clarified that the confidentiality obligation applies equally to the complainant and the respondent, and that any breach—whether by a party, witness, or counsel—would amount to contempt. This judgment filled a crucial procedural vacuum by creating a judicial standard of confidentiality applicable to all forums, including industrial and labour courts.

The Delhi High Court in P v. Union of India,⁸ reinforced this approach by observing that the confidentiality mandated under the POSH Act extends beyond the inquiry itself and continues during administrative or appellate stages. The Court held that disclosure of inquiry findings to third parties without statutory authorisation compromises the fairness of the process and violates the purpose of Section 16. Similarly, in Sankalp Kohli v. Union of India,⁹ the Court emphasised that selective or premature disclosure of internal proceedings could amount to defamation and procedural impropriety, particularly when the inquiry is still pending.

These judicial pronouncements reflect a consistent effort to preserve confidentiality as an indispensable element of due process. Courts have also recognised the institutional misuse of confidentiality provisions where employers sometimes invoke Section 16 selectively to deny access to the respondent or justify non-disclosure of inquiry records, while allowing public references to the complaint itself. The balance between transparency and privacy has therefore become a recurring concern, prompting calls for clearer procedural guidelines.

At the institutional level, several government departments and public sector undertakings have adopted internal confidentiality policies that mirror the statutory language of Section 16 but provide little clarity on the application of its proviso. In practice, the decision to disseminate information about “justice secured” often depends on administrative discretion rather than codified norms. While such disclosures are sometimes motivated by a desire to promote organisational accountability, they risk crossing into reputational harm and breach of privacy when details of the inquiry or parties are indirectly revealed.

The combined judicial and institutional experience demonstrates that the absence of a structured interpretive framework for the Section 16 proviso continues to generate conflicting outcomes. Courts have protected confidentiality on a case-to-case basis, but the underlying question as to what precisely may be disclosed as “information regarding justice secured” remains unanswered. As a result, confidentiality under the POSH regime, though judicially strengthened, still operates within an uncertain statutory landscape that demands further legislative clarification.

Misuse of Confidentiality and the Section 16 Proviso

The proviso to Section 16 was meant to allow transparency without compromising privacy. Yet in practice, it has become the most misinterpreted and misused clause within the POSH framework. The phrase “information regarding the justice secured to any victim” sounds simple enough, but its undefined scope has allowed institutions to interpret it in ways that stretch the spirit of confidentiality to its breaking point.

One of the most visible forms of misuse is selective disclosure. Employers and internal committees, often acting in good faith but with misplaced confidence, sometimes issue internal circulars or press statements noting that “an inquiry under POSH has been concluded and appropriate action taken.” These statements, though anonymised, rarely remain anonymous in reality. Within an office, even a brief description of the department, position, or timing is enough for people to piece together who was involved. The law clearly forbids such indirect identification, yet it continues under the pretext that the disclosure is “information regarding justice secured.”¹⁰

This practice turns confidentiality into a performance tool. What was meant to protect both the complainant and the respondent becomes a form of institutional signalling a way to display that the organisation is responsive and compliant. In doing so, the process risks losing its neutrality. Confidentiality is replaced by curated transparency, and the inquiry is remembered less for its fairness and more for its optics.

The absence of procedural checks makes this even more problematic. Neither the POSH Act nor the 2013 Rules says who can decide when to disclose information, what kind of information qualifies as “justice secured,” or whether any record of such disclosure must be maintained. In effect, a committee or HR head can decide, on instinct, to share the outcome publicly, without approval, justification, or documentation. That silence in the law is dangerous because discretion without accountability easily slips into arbitrariness.

An even deeper problem lies in the asymmetry built into the proviso itself. The phrase refers only to “justice secured to any victim,” which naturally suggests that the disclosure may be made when the complaint is upheld. But what about cases where the respondent is exonerated or the complaint is found to be false or malicious? Those outcomes rarely find their way into public knowledge. The result is a one-sided transparency where condemnation is visible but exoneration is invisible. The stigma of allegation remains, while the relief of vindication stays locked in the confidential record.

The courts have begun to recognise these dangers. In P v. A & Ors. (2021), the Bombay High Court explicitly warned against leaks or indirect disclosures, holding that both sides, complainant and respondent have an equal right to anonymity. Yet the reach of that judgment is limited to judicial proceedings, not workplace inquiries. The absence of binding procedural norms has meant that most organisations continue to navigate this space through guesswork and risk-aversion rather than principle.

There is also a cultural factor at play. Many employers equate confidentiality with secrecy and fear that maintaining strict confidentiality may make them appear indifferent to sexual harassment complaints. In this anxiety to project responsiveness, some cross the line and reveal more than what the law permits. Ironically, what begins as a gesture of institutional accountability ends up compromising the integrity of the POSH mechanism itself.

If the purpose of the proviso was to strengthen trust in the system, its misuse has had the opposite effect. Confidentiality breaches discourage complainants from reporting, since they fear gossip and professional backlash. They also violate the respondent’s right to reputation, a right that courts have repeatedly read as part of Article 21 of the Constitution. In effect, the misuse of this small proviso has created a structural tension between justice and publicity, one that neither Parliament nor the courts have yet resolved.

The solution cannot lie in suppressing all information, but in defining what may be shared and how. If the law clearly specified that only anonymised data or statistical summaries of resolved cases may be disclosed, the balance between transparency and privacy could be restored. Organisations could then demonstrate compliance without personal exposure. Until that clarity arrives, however, the proviso to Section 16 will continue to operate less as an exception and more as a loophole, one that quietly undermines the very fairness the POSH Act set out to guarantee.

Conclusion

The confidentiality framework under the POSH Act was designed to preserve the dignity of the complainant and to ensure that inquiry proceedings remain insulated from public influence or social pressure. However, the practical experience of its implementation shows that this well-intentioned safeguard has often evolved into a tool of imbalance. The proviso to Section 16, which allows dissemination of “information regarding the justice secured to any victim,” remains undefined in both scope and purpose. This ambiguity has led to selective and sometimes motivated disclosures, eroding the fairness that confidentiality was meant to guarantee.

Another related concern, and one that has gradually gained judicial and social attention, is the growing number of cases found to be false, exaggerated, or filed with ulterior motives. While such instances do not undermine the legitimacy of genuine complaints, they highlight the dangers of a one-sided legislative design. The POSH Act, framed as a welfare-oriented and gender-specific statute, provides protections exclusively to women, leaving no parallel safeguards for men or persons of other genders who may face similar forms of workplace harassment. In this context, the confidentiality provisions, though neutral in language, have been operationalised primarily to shield the complainant, while the respondent remains exposed to reputational harm and professional stigma.

The absence of a mechanism to publicly correct false or unsubstantiated allegations exacerbates this imbalance. Once an allegation becomes known, often through indirect disclosures justified under the Section 16 proviso, its effect rarely disappears, even when the respondent is exonerated. In such cases, confidentiality becomes asymmetric: it protects the complainant’s privacy but not the respondent’s reputation.

The law must therefore evolve to address this inequity. The legislature should revisit Section 16 and its proviso to clearly define what information may be disseminated, by whom, and in what manner. Equally important, the statute must move towards a framework that recognises gender neutrality in both protection and procedure. Ensuring fairness to all parties does not dilute the objective of protecting women; it strengthens the credibility and sustainability of the entire POSH regime.

In the long run, maintaining trust in the redressal mechanism requires a legal balance that protects dignity without permitting misuse. The time has come for the legislature to acknowledge the gaps exposed through practice and to introduce amendments that close them, restoring confidentiality to its rightful purpose as a shield of fairness, not a tool of selective protection.

References

1. The Protection of Women from Sexual Harassment at Workplace Act, No. 14 of 2013, § 16, INDIA CODE (2013).
2. Id. proviso to § 16.
3. Id. § 17.
4. Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013, Rule 12, Gazette of India, Dec. 9, 2013.
5. Id. Rule 14.
6. The Protection of Women from Sexual Harassment at Workplace Act, No. 14 of 2013, § 16 proviso, INDIA CODE (2013).
7. 2021 SCC OnLine Bom 4014.
8. 2022 SCC OnLine Del 2547.
9. 2023 SCC OnLine Del 3435.
10. See The Protection of Women from Sexual Harassment at Workplace Act, No. 14 of 2013, § 16 proviso, INDIA CODE (2013). See also Confidentiality is Non-Negotiable under POSH, Metis India Blog (2024), https://posh.metisindia.com/confidentiality-is-non-negotiable.